Iain Walker v. Norene Walker
701 F.3d 1110
| 7th Cir. | 2012Background
- Iain Walker, an Australian citizen, petitions under ICARA to compel Norene, a U.S. citizen, to return three children to Australia under the Hague Convention.
- The district court denied the petition, holding habitual residence was the United States and that Norene’s retention was not wrongful for two reasons: Iain lacked custody rights and had consented to the children remaining in the U.S.
- The Walkers lived in Australia from 1998 to 2010; the June 2010 U.S. trip was followed by uncertainty about whether it was temporary or permanent.
- A January 21, 2011 settlement-letter framed as a Hague Convention offer suggested Australia as habitual residence; negotiations failed by mid-February 2011, after which Iain filed a return petition in May 2011.
- Iain filed a Central Authority request in mid-February 2011, signaling opposition to the children’s U.S. retention; the district court later held the retention began May 4, 2011.
- The court remanded for further fact-finding on (1) mutual intent about the 2010 trip, (2) Iain’s participation in Illinois divorce and possible consent or acquiescence, and (3) the children’s views per Article 13.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case is moot due to a custody judgment | Habitual residence dispute keeps the case live. | Illinois custody judgment moots Hague issues. | Remand required; not moot. |
| Admissibility of the January 21 letter under Rule 408 | Letter is relevant to settlement efforts. | Letter is an offer of compromise and should be excluded. | Error to admit; but remand granted anyway; letter provides no basis to deny petition. |
| Habitual residence of the children at retention start | Record shows Australia as habitual residence; retention began January 21, 2011. | Court should find U.S. residence based on later actions. | Reversal; cannot conclusively determine habitual residence; remand needed. |
| Whether Iain was exercising custody rights at retention | Iain maintained contact; potential to exercise rights; not abandonment. | Lack of financial support and other factors show non-exercise. | Not proven on record; remand required to resolve. |
| Consent or acquiescence defenses under Article 13 | January 21 letter not clear consent; ongoing negotiations negate. | Conduct indicated consent/acquiescence. | Not shown; consent rejected; remand to address fully. |
Key Cases Cited
- Koch v. Koch, 450 F.3d 703 (7th Cir. 2006) (habitual residence determined by abandonment and new residence via parents’ shared actions and intent)
- Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011) (governs habitual residence and petition for return under Hague)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (change in habitual residence requires shared intent and actual relocation)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (liberal standard for exercising custody rights; avoid merits adjudication)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) (non-exercise analysis; abandonment not shown by brief nonpayment)
- Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007) (mootness not settled by custody order in other cases)
- Yang v. Tsui, 416 F.3d 199 (3d Cir. 2005) ( Younger abstention not appropriate; Convention petitions addressed on merits)
- Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) (Rooker-Feldman and related doctrines do not bar Convention petitions)